Municipal Corporation Of Delhi vs Dhan Singh
2007 Latest Caselaw 314 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This writ petition has been preferred by the petitioner against the award dated 5th August, 2002 passed by Industrial Tribunal-III( in short "the Tribunal"), Delhi whereby the the Tribunal held that the respondent shall be treated as Catering Supervisor from 8th January, 1986 in the proper pay scale with all usual allowances and benefits and he should be paid arrears of salary within 60 days.

2. The respondent was working as Kitchen Bearer with the petitioner. Vide order dated 8th January, 1986, he was asked to work as Catering Supervisor on ad hoc basis till a regular appointment was made. He was reverted back as Kitchen Bearer on 14th December, 1989. He raised an industrial dispute which was referred to the Tribunal in following terms:

Whether Sh. Dhan Singh Kitchen bearer has worked as a Catering Supervisor from 8.1.1986 to 14.12.89 and if so, whether he is entitled to be promoted as Catering Supervisor by virtue of services rendered as Catering Supervisor and what directions are necessary in this respect?

3. A perusal of award would show that the Medical Superintendent of the Lajpat Nagar Hospital of the petitioner issued office order dated 8th January, 1986 whereby respondent Dhan Singh who was working as Kitchen Bearer was asked to do the job of Catering Supervisor till a regular appointment was made. On the basis of this order, Dhan Singh started working as Catering Supervisor and he worked as Catering Supervisor from 8th January, 1986 to 14th December, 1989. He was reverted back to his original cadre of Kitchen Bearer. He raised above industrial dispute in the year 1995 about withdrawing the ad hoc assignment of Catering Supervisor from him. The workman contended that he was higher secondary passed and had established his eligibility for the post of Catering Supervisor. The management had post of catering supervisor lying vacant in view of circular dated 12th November, 1982 whereby applications were invited for the posts of catering supervisors from kitchen staff. Since the respondent was eligible for the post of catering supervisor, there was no reason for reverting him back. The management had not given any reason to remove him from the post of Catering Supervisor. The Tribunal observed that:

He has worked on the same post for more than 3 years i.e. for almost 4 years. The workman has also established his eligibility for the said post and the appointment itself shows that the workman was competent to perform the job of catering supervisor, as there was no complaint against this work and conduct of the entire period, when he worked as catering supervisor, as there is no memo or charge sheet in this regard. The management has failed to show that he could not be promoted to the post of catering supervisor as per the rules. Therefore, it is presumed that as per the rules also, he is entitled to promotion. Accordingly, it is held that Shri Dhan Singh, Kitchen bears who has worked as Catering Supervisor from 8.1.86 to 14.12.89, is entitled to be promoted to the post of catering supervisor and his reversion from the post of catering supervisor to the post of nursing bearer w.e.f. 14.12.89 is wrong and unjustified. He was entitled to hold the post of catering supervisor until he was regularly promoted or any regular appointment had been made. But there is no case of the management that any regular appointment has been made to the post, so that the workman was required to be reverted. Accordingly, this issue is answered in favor of the workman and against the management.

4. The Tribunal, therefore, gave directions that the workman be promoted on the post of catering supervisor from 8th January, 1986 in the proper pay scale of the post of catering supervisor.

5. The award has been challenged by the petitioner on the ground that the award is perverse. The temporary promotion of the workman came to an end in 1989. The workman was holding regular post of kitchen bearer only. The claim of the respondent to the post of catering supervisor along with regular pay scale was contrary to law. The respondent had raised the dispute in contravention of Recruitment Rules as adopted by the petitioner for effecting promotion to the post of catering supervisor.

6. The Recruitment Rules are annexed as Annexure-A. These rules provide that the essential qualification for the post of Catering Supervisor was 10th pass from recognized university/school and a certificate in catering or equivalent training in catering from ITI or any other recognized university. The rules also provide that 50% of the post shall be filled by promotion and 50% by direct recruitment. In case of promotion, the cadre from which promotion was to be made was of Head Cook with three years regular service in that cadre and middle pass from recognized school or board or equivalent. It is submitted that the award was given by the Tribunal granting promotion and arrears of salary to respondent without taking into account the relevant factors like seniority, merits eligibility, availability of post and requisite experience in lower cadre post and the Tribunal acted in an arbitrary manner. The post of catering supervisor was a promotional post and promotion could to be done only in accordance with the rules, in a phased manner. The respondent cannot be allowed to circumvent the statutory procedure adopted for promotion of Kitchen Bearers and Kitchen Attendants.

7. The respondent in the counter affidavit has taken the stand that this Court should not interfere with the Tribunal's order in view of the Judgment of Supreme Court in AIR 1984 SC 1967 Sadhu Ram v. Delhi Transport Corporation wherein it is observed that Article 226 of the Constitution of India was a device to secure and advance justice and not otherwise. He also relied upon Harbans Lal v. Jag Mohan to press the point that once the Tribunal has given its findings based on evidence, the High Court should refrain from interfering in its writ jurisdiction. It is also submitted that no substantial question of law has been raised by the petitioner and the petition was liable to be dismissed.

8. The award passed by the Tribunal, on the face of it, is contrary to law laid down by the Supreme Court and perverse. The respondent in this case was admittedly given assignment as catering supervisor only on ad hoc basis till regular recruitment was done. The vacancies had already been advertised and applications were invited by the management/petitioner from its own employees also in accordance with recruitment procedure since 50% of the posts were to be filled by promotion failing which direct recruitment was to be done. The respondent instead of applying for the post of catering supervisor and seeking selection in accordance with recruitment rules raised an industrial dispute that he was entitled for promotion since he fulfillls the qualification and the Tribunal, without caring for the law and the fact that the respondent was merely given an ad hoc promotion held that since the respondent fulfillls all necessary qualifications and had worked satisfactorily, he was entitled for promotion from the date of his initial appointment. Thereby the Tribunal gave priority to the respondent over all other aspirants within the department and outside and granted a retrospective promotion to the respondent contrary to law.

9. The reasons given by the Tribunal do not stand the scrutiny of law. In Secretary, State of Karnataka and Ors. v. Umadevi and Ors. 2006 SCC(L&S) 753, the Supreme Court had considered the question of ad hoc appointments and the manner in which ad hoc appointments were being directed to be regularized by High Court in writ jurisdiction and the Supreme Court deprecated the practice of making ad hoc employees as regular and ruled that merely length of service shall not give right to ad hoc and casual employees to steal a march over those who had a right to apply and compete with others for the posts. Supreme Court further observed:

In Director, Institute of Management Development, U.P. v. Pushpa Srivastava this Court held that since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the end of the calendar year concerned was issued. This Court noticed that when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain the the post came to an end. This Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.

In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra a three-Judge Bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. /This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.

30. In State of H.P. v. Suresh Verma a three-Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said: (SCC p.563, para 2) It is settled law that having made rules of recruitment to various services under the State or to class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily-wage basis is not an appointment to a post according to the rules.

Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, " the judicial process would become another mode of recruitment dehors the rules."

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In Union Public Service Commission v. Girish Jayanti Lal Vaghela this Court answered the question, who was a government servant and stated: (SCC p.490, para 12).

12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words 'employment' or 'appointment' cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose matters are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State of Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution ( see B.S. Minhas v. Indian Statistical Institute .

10. Supreme Court further observed that Courts have not always kept the legal aspect in mind and have occasionally stayed the regular process of employment already brought in motion and in some cases directed that those illegally appointed or improper entrants be absorbed into service. A class of employees which can only be called litigious employees has risen, seriously impairing the Constitutional Scheme. Supreme Court observed that even equity does not call for such orders. Equity cannot be in favor of people who approached the Courts with a claim, considering the poor millions of this country who are seeking employment and seeking fair opportunity for competing for employment. Referring to its earlier decisions in State of Punjab v. Jagdeep Singh Supreme Court held that the Government servant has no right to a post or status, to which he has not been validly appointed in accordance with the procedure of recruitment. The Court emphasized that when rules for recruitment are in existence or have been framed and are enforced, no regularization is permissible of those employees who have not been recruited as per rules. The Courts ought not to order such regularization. Supreme Court also recognized the right of the administration to do ad hoc appointments, engaging daily workers and to engage casual labourers or temporary hands to meet the contingency requirements and emergent situations and held that persons so engaged are liable to be disengaged when the requirements is over. The Court cannot compel the establishments and the State to absorb all such persons whether or not they are required. The State is equally governed by the financial implications and the Courts cannot impose financial burden on the State by giving such directions.

11. A person has a right to be considered for promotion if he is eligible for the post. Whether a person is fit for promotion and is to be promoted is the prerogative of the management and management has to consider suitability, eligibility and all other aspects as laid down by rules while granting or refusing the promotions. This prerogative of the management to consider the suitability of its employee for promotion cannot be usurped by the Labour Courts or Tribunals. The Tribunal cannot sit in place of the management and decide whether an employee meets the eligibility criteria and was a fit person to be promoted or not and thereby take away the right of the management to consider the grant of promotion, if he is eligible for the same. The Tribunal has no right to run administration of any department. It can only adjudicate the dispute legitimately raised and falling within its jurisdiction. The Tribunal could have only ordered that the respondent be considered for promotion, if he was eligible in accordance with rules, at his turn. The Tribunal had no jurisdiction to order that since the respondent fulfillls the basic minimum qualifications for the post of Catering Supervisor, therefore, he was deemed to be promoted. Such an order of the Tribunal was per se perverse and was bound to be set aside. The Tribunal had grossly transgressed all the limitations on its jurisdiction.

12. The plea of the respondent that this Court has no jurisdiction to interfere with the order of Tribunal is baseless. This Court under Article 226 of the Constitution of India has jurisdiction to set aside all such orders which are perverse and contrary to law. The order of the Tribunal in this case is contrary to settled law that promotion is not a matter of right and only the right of a person is to be considered for promotion.

13. The respondent was given ad hoc appointment to the post of catering supervisor. An ad hoc appointment can be brought to an end by management any time and it does not vest any right in the appointee. The respondent had every opportunity to apply for the post as a departmental candidate but he cannot be allowed to steal a march over others on the basis of a perverse order. The counsel for respondent argued that the eligibility criteria for post of catering supervisor provide that he should hold a certificate from I.T.I and the department had not appointed any person so far having I.T.I certificate. The respondent therefore was eligible and rightly held so by Tribunal. This argument is baseless. The requirement of ITI certificate is for direct recruits and not for departmental candidates. The eligibility for departmental candidates is different. Everybody who fulfillls the minimum qualifications or experience cannot be ordered to be promoted by the Tribunal. Promotion has to be considered by the departmental promotions committee is accordance with rules, seniority, number of posts available, eligibility etc. It is not the business of Tribunal nor within its competence.

14. In view of my above discussion, I allow this writ petition. Order of the Tribunal dated 5th August. 2002 is set aside. The respondent shall stand relegated to his original post. No orders as to costs.